Faculty Books & Edited Works

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Africana: The Encyclopedia of the African and African American Experience: The Concise Desk Reference

Kwame Anthony Appiah and Henry Louis Gates Jr.

Drawn from the acclaimed landmark in reference publishing, this incomparable one-volume encyclopedia of the black world is now within reach of every family, student, and educator. It brings the entire Pan-African experience into sharp focus, with entries ranging from “affirmative action” to “zydeco,” from each of the most prominent ethnic groups in Africa to each member of the Congressional Black Caucus. Africana will provide hours of reading pleasure through its longer, interpretive essays on the religion, arts, and cultural life of Africans and of black people everywhere.
EU Law: Text, Cases, and Materials

Paul Craig and Gráinne de Búrca

This eagerly awaited new edition of the popular EU Law: Text, Cases and Materials. Written by two experts in the field, the book offers the reader and authoritative and comprehensive guide to all aspects of EU law. Though the unique mix of text and cases and materials, the fully revised and updated third edition addresses all recent key developments in legislation, with particular focus on the Treaty of Nice. The structure and format of the chapters have been substantially improved by introducing tools to help navigate throughout the text. In particular, there are new sections on 'central issues,' which introduce each chapter, summaries that explain complex concepts and legislation and conclusions that draw all themes and analysis together.
Skepticism and Freedom: A Modern Case for Classical Liberalism

Richard A. Epstein

With this book, Richard A. Epstein provides a spirited and systematic defense of classical liberalism against the critiques mounted against it over the past thirty years. One of the most distinguished and provocative legal scholars writing today, Epstein here explains his controversial ideas in what will quickly come to be considered one of his cornerstone works. He begins by laying out his own vision of the key principles of classical liberalism: respect for the autonomy of the individual, a strong system of private property rights, the voluntary exchange of labor and possessions, and prohibitions against force or fraud. Nonetheless, he not only recognizes but insists that state coercion is crucial to safeguarding these principles of private ordering and supplying the social infrastructure on which they depend. Within this framework, Epstein then shows why limited government is much to be preferred over the modern interventionist welfare state. Many of the modern attacks on the classical liberal system seek to undermine the moral, conceptual, cognitive, and psychological foundations on which it rests. Epstein rises to this challenge by carefully rebutting each of these objections in turn. For instance, Epstein demonstrates how our inability to judge the preferences of others means we should respect their liberty of choice regarding their own lives. And he points out the flaws in behavioral economic arguments which, overlooking strong evolutionary pressures, claim that individual preferences are unstable and that people are unable to adopt rational means to achieve their own ends. Freedom, Epstein ultimately shows, depends upon a skepticism that rightly shuns making judgments about what is best for individuals, but that also avoids the relativistic trap that all judgments about our political institutions have equal worth. A brilliant defense of classical liberalism, Skepticism and Freedom will rightly be seen as an intellectual landmark.
Working Together: How Workplace Bonds Strengthen a Diverse Democracy

Cynthia Estlund

The typical workplace is a hotbed of human relationships--of friendships, conflicts, feuds, alliances, partnerships, coexistence and cooperation. Here, problems are solved, progress is made, and rifts are mended because they need to be - because the work has to get done. And it has to get done among increasingly diverse groups of co-workers. At a time when communal ties in American society are increasingly frayed and segregation persists, the workplace is more than ever the site where Americans from different ethnic, religious, and racial backgrounds meet and forge serviceable and sometimes lasting bonds. What do these highly structured workplace relationships mean for a society still divided by gender and race? Structure and rules are, in fact, central to the answer. Workplace interactions are constrained by economic power and necessity, and often by legal regulation. They exist far from the civic ideal of free and equal citizens voluntarily associating for shared ends. Yet it is the very involuntariness of these interactions that helps to make the often-troubled project of racial integration comparatively successful at work. People can be forced to get along-not without friction, but often with surprising success. This highly original exploration of the paradoxical nature--and the paramount importance--of workplace bonds concludes with concrete suggestions for how law can further realize the democratic possibilities of working together. In linking workplace integration and connectedness beyond work, Estlund suggests a novel and promising strategy for addressing the most profound challenges facing American society.
The 1980 Uniform Sales Law: Old Issues Revisited in the Light of Recent Experiences: Verona Conference 2003

Franco Ferrari

The trend towards the unification of international commercial law is one of the most charateristic features of the law of the second half of the twentieth century. The sheer numbers of the international uniform commercial law instruments elaborated to this end bear witness to this development. Against this backdrop, the Faculty of Law of Verona University hosted a Conference from 17 to 19 April 2003 to discuss what is considered the most important and successful uniform commercial law instrument, namely the 1980 UN Convention on Contracts for the International Sale of Goods (CISG). On that occasion, some of the most famous CISG experts and scholars such as Filip De Ly, Franco Ferrari, Harry Flechtner, Rolf Herber, Alain Levasseur, Joseph Lookofsky, Ulrich Magnus, Anna Veneziano, Claude Witz, meet to examine issues dear both to practitioners and scholars. In doing so, the speakers all took into account recent experiences, such as the emergence of case law and the revision of domestic legislation in the area of sales law. This book contains the proceedings of the Verona Conference, aimed at highlighting the CISGís impact not only on courts, but also on legislators, international and domestic alike.
Regulation of Lawyers: Statutes and Regulations

Stephen Gillers and Roy D. Simon

Prior edition of Regulation of Lawyers: Statutes and Regulations.
The Creation and Interpretation of Commercial Law

Clayton P. Gillette

This volume contains essays by prominent commentators on topics in commercial law. It addresses the increasing harmonization of international commercial law and the essays demonstrate different methodologies used in analysing commercial law, such as economic and jurisprudential approaches.
Labor Law: Cases, Materials, and Problems

Michael C. Harper, Samuel Estreicher, and Joan Flynn

The new edition of this basic labor law textbook updates material related to recent U.S. Supreme Court rulings related to the ousting of incumbent unions and the supervisory status of nurses and other professional workers. It also takes into account shifts in National Labor Relations Board (NLRB) doctrine conditioned by Democratic control in the 1990s. The chapters dealing with union certification and recognition processes, NLRB jurisdiction, and judicial review of NLRB decisions have been substantially revised and reorganized.
Federal Income Taxation

William A. Klein, Joseph Bankman, and Daniel N. Shaviro

The latest edition of this classic casebook continues to integrate theory with policy, making the study of Federal Income Taxation challenging but accessible. Both students and instructors will appreciate how the authors cover a wealth of new material--and all the fundamentals of individual taxation--in a manageable length. Federal Income Taxation, Thirteenth Edition, retains the strengths that have made it such a highly regarded casebook: problems interspersed with notes and questions, to reinforce the text and hold student interest; built on the foundation established by original author Boris Bittker, with the current author team among the best scholars of the present day; unique introduction provides insightful historical background and some brief economic analysis; integration of theory and policy throughout the text makes the book intellectually stimulating while demonstrating real-world applications. Scrupulously updated for its Thirteenth Edition, the book now includes: the 2001 Tax Act, and other major legislation that will have long-term effects on the code; new developments in corporate tax shelters; the reversal of the Compaq case, a setback to IRS efforts to crack down on corporate tax shelters; major new cases - Chamales v. Commissioner, Henderson v. Commissioner, and Wayne Baseball, Inc. v. Commissioner on personal deductions, exemptions, and credits; Popov v. Commissioner on allowances for mixed business and personal outlays; PNC Bancorp v. Commissioner, Exacto Spring Corp. v. Commissioner, Kenseth v. Commissioner on deductions for the costs of earning income - fully revised Teacher's Manual with sample syllabi and atransition guideFor a subject as important as Federal Income Taxation, be sure to consider the casebook that has demystified taxation for generations of students. Examine Federal Income Taxation, Thirteenth Edition, before you select materials for your next course.
Reconstructing Climate Policy: Beyond Kyoto

Richard B. Stewart and Jonathan B. Wiener

In their comprehensive analysis of the Kyoto Protocol and climate policy, Richard B. Stewart and Jonathan B. Wiener examine the current impasse in climate policy and the potential steps nations can make to reduce greenhouse gases. They summarize the current state of information regarding the extent of global warming that would be caused by increasing uncontrolled greenhouse emissions, the impacts of warming, and the costs of limiting greenhouse emissions. They explain why participation by all major greenhouse-emitting countries is essential to curb future greenhouse gas emissions and also note the significant obstacles to obtaining such participation. Stewart and Wiener argue that it is in the national interest of the United States to participate in such a regime, provided that it is well designed. They discuss the elements of sound climate regulatory design, including the maximum use of economic incentives, a comprehensive approach, and other flexibility mechanisms: participation by all major emitting countries including developing countries, regulatory targets based on longer-term emissions pathways set to maximize net social benefits; and effective arrangements to ensure compliance with regulatory obligations by nations and sources. After evaluating the successes and failures of the Kyoto Protocol in light of those elements, the authors propose a series of U.S. initiatives at the international and domestic levels, with the aim of engaging the United States and major developing country emitters such as China in the global greenhouse gas regulatory effort and correcting the remaining defects in the design of the Kyoto Protocol. Although several alternatives to the current Kyoto Protocol regime have been proposed, Stewart and Wiener argue that the best approach for surmounting the current global climate policy impasse is a new strategy that would lead, sooner of later, to simultaneous accession by the United States and China (and other major developing country emitters) to a modified and improved version of the Kyoto Protocol agreement.
Trade and Transitions: A Comparative Analysis of Adjustment Policies

Michael J. Trebilcock, Marsha A. Chandler, and Robert L. Howse

Faced with increased levels of international competition and mounting budget deficits some developed, Western economies have responded by introducing trade restrictions. This book uses a comparative analysis of eight leading industrial nations (including Japan, the United States, West Germany and Britain) to demonstrate that such policies are mistaken. Alternatives to trade restrictions, including subsidies for industries and labour-market policy instruments are also shown to have their drawbacks, and the book emphasises the need for countries to find and exploit policies which fulfil their own political and social needs but which are least injurious to their trading partners.
Integration in an Expanding European Union: Reassessing the Fundamentals

Joseph H. H. Weiler, Iain Begg, and John Peterson

The European Union is on the brink of fundamental change. Just as the EU is about to enlarge radically, the Convention on the Future of Europe may transform it into a political entity governed by a constitution. This timely volume brings together a world-class group of scholars and practitioners to examine the fundamentals of integration in an expanding EU. A timely examination of fundamental questions about the future of Europe. Written by a top-class group of contributors. Combines contributions from theorists and practitioners. Spans all the principal disciplines with an interest in the EU.
European Constitutionalism Beyond the State

Joseph H. H. Weiler and Marlene Wind

The notion of a European constitution has previously received unfavourable reactions within the European Union with controversy surrounding its political and legal implications. Criticism has largely revolved around the threat of an emerging European federal state. More recently, however, constitution-building has become a major point of debate among members of the European Community as the drafting of a European constitution becomes more imminent. European Constitutionalism Beyond the State brings together some of the most innovative scholars in the field to highlight different facets of the new constitutional discussion. Provoking deep analysis of the different ideas of constitution and constitutionalism, the book delineates alternative ways of thinking about the future of Europe. In particular, it aims to challenge the idea of the European Union as an evolving federal polity. This book will appeal to anyone interested in the timely subject of constitutionalism including students and practitioners of law, politics and philosophy.
Bu Me Bε: Akan Proverbs

Peggy Appiah, Kwame Anthony Appiah, and Ivor Agyeman-Duah

The genius, wit and spirit of a Nation are discovered by their proverbs. So wrote Francis Bacon in 1594. But, whereas Westerners no longer seem to consider proverbs as words of wisdom, but rather as commonplaces, to be used in everyday conversation, in many countries of Africa, and, in particular, amongst the Akan, a truly educated and cultured person is one who can make use of proverbs and whose speech is full of the imagery and the innuendo that they make possible. Proverbs contain the philosophy, humor, symbolism and religion of the peoples who use them. They are imbued with a deep knowledge of the surrounding world, physical and spiritual, and of social realities. No one can appreciate the philosophy and beliefs of the Akan without studying their proverbs. Even today the use of an appropriate proverb in public oratory is deeply appreciated and is often the final word in an argument. One short proverb can provide the equivalent of pages of philosophical discussion. The Proverb Though we carry gunpowder, we smoke tobacco (No. 5699) is a good example of this. Even in a dangerous situation, you must enjoy the good things of life, or, as a friend once explained to me: Even if things are very, very bade, we must enjoy fufuo Thus, if people need money to pay debts, it is better, an elder will tell you, to pay the debt for them than to give them the money: for the money they might be tempted to use for every day enjoyment. Risks must be taken to enjoy life, whatever the theoretical priorities may be. The famous symbol of the crocodiles, with a single central stomach but two heads and tails, which illustrates the proverb Stomachs mixed up, crocodiles’ stomachs mixed up, they both have one stomach but when they eat they fight because of the sweetness of the swallowing (No. 2402) reflects the dilemmas and the complexities of the family system. All individual actions affect the family in general (that is, all food goes in one stomach;) but, as the crocodiles reply, the taste is in the throat—enjoyment is an individual not a group experience. Education in traditional society involved oral and not written communication; and proverbs were a way of reinforcing moral and social precepts. They teach the philosophy and way of life of the community, its customs and its prejudices. Before a person can become well versed in customary behavior, they must have a broad knowledge of proverbs to illustrate and emphasize their statements. This knowledge is, and was, learnt by listening to the elders. It is in the village context, where the elders gather together to discuss village and state affairs, to reminisce and to pass on their wisdom to the young that the richness of the proverbs is most manifest. In Chieftancy or Stool affairs, above all, knowledge of the provers is essential. It is one of the main qualifications of the Stool linguists. An aspiring Akan orator is expected to know many proverbs and to be able to cite to provide points of comparison, illustrating general truths about human behavior, during legal proceedings and on deliberative occasions. Provers can be used to summarize what would otherwise be a long and tedious disquisition. They can, also, like the folk tales, be used as a polite—and oblique—form of criticism, when direct speech would cause offence, and they are thus a way of avoiding quarrels or conflict. The Akan do not always favor clear and direct statement, and proverbs are used when people do not want to be immediately and directly understood, or where a double meaning or a prevarication is required. Proverbs can also be used to emphasize a statement or argument, especially where it is desired to show that there is precedent for a certain action. Present actions are interpreted in terms of the past, and given the aura of the conventional by their association with familiar forms of words. This collection of proverbs has been made over many years and has been obtained in many different ways. The greatest debt is owed to Christaller, whose collection of 3,600 proverbs in Fanti and Akuapem-Twi, made in the mid-nineteenth century, has formed the basis of every collection since published in Europe. His dictionary, from Twi into English, is still the only good one available, and he cross-referenced it with the proverbs, making their translation substantially easier. This collection of 7,000 is, however, in the Asante-Twi dialect, which is slightly different from Akuapem-Twi. Most of proverbs are common to the two dialects, but we have always used the Asante-Twi version in this collection. Mr. C. E. Osei, one of the elders of the last generation, generously gave his written collection of proverbs, some of which confirmed those already collected, some of which were new. Almost all the translation and some of the collection has been done in collaboration with Yaw Adusi-Poku, whose book, in part, this is. He has spent patient hours chewing over the translations of the written Asante-Twi versions. Mr. K. Nsiah, who is a gifted recorder of the old oral traditions and whose own proverbs are indistinguishable from the main tradition, has given us his own collection, and, by consulting the elders in his family, has helped to explain some of the difficulties and, in particular, the historical allusions. Mr. A. C. Denteh, the Twi scholar, provided us with invaluable advice and criticism. A list of other sources, including some of the individuals who have helped, appear at the end of the book. (Appendix B.) My own individual contribution has been the proverbs collected while doing research on the Asante gold-weights, in Asante, Brong-Ahafo and other Twi-speaking areas. Sitting in village compounds and in the houses of their chiefs, I was able to record many proverbs not actually needed for their association with the weights. Wandering conversations on objects and artifacts used in the village, the farm and the forest, produced many stories which later allowed me to understand some of the more difficult proverbs. Amongst the aged there is a nostalgia for the past, for a time in which, as imaginative memory has it, the boundaries between fiction and reality were blurred. As one old man told me sadly: In the old days if I had told you this stone was a tortoise, you would have seen it get up and walk! Village life changes slowly and the proverbs and spider stories of the Ananseasém—often seem, as one sits in the village, more real than modern life. Since so few books have been published in Asante-Twi, some of the words, such as the names of plants, birds, insects and animals, have been hard to verify, and we have probably made some mistakes in translation. In addition, just as in the English language, words have changed through the years, and one image has sometimes take the place of another, making the meaning difficult to recover. There are many very local varieties of the same proverbs (and words) and the ones I have recorded may not be the favorite versions in all Akan areas. After listening to hour-long conversations as to exactly what certain proverbs mean or as to whether the wording is one way or another, in the end I have had to make a personal choice. One difficulty in translating or explaining a proverb is the number of different contexts within which a single proverb may be used. It is impossible to explain all the uses, even if one is aware of them; it is the occasions that brings a proverb to mind and a skilled user will exploit the subtleties of a proverb to the maximum. Finally, the proverbs provide a richness of poetic imagery and vision which makes them a distillation of the best of Akan languages and oral literature. They give inspiration to drum and horn language, give depth to the funeral dirges and the appellations of the chiefs, and are used symbolically in many items of stool paraphernalia, where visual designs have associated proverbial meanings. To those who use them and to us who collect them alike, the proverbs are a treasure beyond price. For me, the gathering of them has been a great joy; and I have spent many hours immersed in their study and arrangement. They should be preserved and cherished in all their richness profound or punning, profane or philosophical, obvious (occasionally) and, (more often illuminatingly obscure. They are, in sum, the verbal shrine for the soul of a nation. Those mistakes in recording and vocabulary that remain I must regret. Such a collection should be a challenge to Akan scholars—to correct, add to and adapt accordion to their own knowledge and vision. This is only a first effort to publish a portion of this rich tradition with accompanying translations and glosses, so that it shall not be lost to the world in general and to the future generations of the Akan in particular.
Cases and Materials on European Union Law

George A. Bermann, Roger J. Goebel, William J. Davey, and Eleanor M. Fox

The study of European Community law, always of interest, since the Community’s creation, has taken on special importance in recent years. As the Community perfects its goal of a true internal market and monetary union, while contemplating an unprecedented enlargement to the east and profound constitutional reform, American Lawyers and law students naturally seek to learn more about the Community and its law. With the advent of the European Union in 1993, following the Maastricht Treaty, the European-level legal framework has become still more complex. Each of the Union’s three “pillars” (Community law, common foreign and security policy, and police and judicial cooperation in criminal matters) has generated its own “law.” We may truly speak today about both European Community law and European Union law, though the former predominates in this casebook and in the legal literature more generally. This casebook is intended to provide a basic understanding of the Community and Union, their structures, goals, fields of action, achievements and aspirations, as well as to lay a foundation for further research, analysis and legal writing. There are many valid reasons to study Community and Union law. We present here three of the most important ones. The most pragmatic of them is that the Community has become the largest trading partner of the US, constitutes the largest overseas single market in the world, and represents a major site of investment for US firms. US lawyers, both international house counsel and outside counsel, can no longer afford to possess only a limited knowledge of Community structure, law-making processes and substantive law. Community competition and trade law have long been staples of international practice. Today, the European Community’s harmonization of health, safety and technical standards, banking, securities and company law, environmental and consumer protection measures, and actions in the field of agricultural and social concern to US interests and their lawyers. The Community’s achievement of an economic and monetary union, with a single currency and a single monetary policy, is also of evident importance to the international business and legal world. Second, Community and Union law are rewarding fields for comparative law study. This has long been true in competition and trade law, where academics and practitioners have found provocative points of comparison and contrast. Today a rich source of comparative study is to be found in the Community programs for harmonization of laws. In some fields, as in environmental and securities law, the Community has been significantly influenced by US models, but still strikes certain different notes. In other fields, such as banking, company law, consumer protection and social policy, the Community has taken quite a different path from the US, and its law has had its echoes in American law. Constitutional comparisons and contrasts between the US and EU have acquired unprecedented interest among comparatists. The divergences between US and Community law have provoked thoughtful reflection on the context and underlying values of each system. They should continue to do so. Third, Community law provide a laboratory for study of law formation: the development of an entire legal system in modern times. The study includes the Community’s constitutional framework, its institutions, substantive legislation and judicial law, and the constant interplay of policy and politics in an evolving federal-type system, one comprised of fifteen (and soon more) nations having many commonalities but also divergent systems, demographics and interests. The casebook rewards the student who has come to the course for any or all of these reasons. The book covers virtually all major fields of Community law. (We regret that, despite the book’s increase in size over the first edition, space considerations prevented coverage of certain important topics, such as public procurement, transport, agriculture and telecommunications law.) The notes and questions have been crafted to facilitate reflection on how and why the Community and Union institutions, and especially the Court of Justice and Court of First Instance, have reached their legal and policy conclusions. The text and notes make frequent comparisons with US law. The authors hope that the reader will thereby achieve not only a good comprehension of Community and Union law, but also a critical one. The casebook is intended of use in US law schools, but it may also be suitable for faculties in Europe and elsewhere. Our casebook follows traditional US teaching methods which give central attention to primary materials, such as legislation and court judgments, inviting students to examine these materials critically though focused questions. Accordingly, Court of Justice and Court of First Instance judgments and Community legislation are subjected to the same kind of analytic review as US laws and Supreme Court opinions would be in a standard constitutional law casebook. We hope that European professors and students will find that the process of analytic examination of judgments and legislation through questions will assist in a more reflective comprehension of Community rules and judicial doctrines. The preparation of this edition and the teaching of the subject in general has been complicated by the decision implemented in the 1998 Treaty of Amsterdam (effective 19990 to renumber the articles of the treaties establishing both the European Community (EC Treaty) and the European Union (TEU). For instance, generations of Community law scholars have written and discussed the impact of Article 30’s ban on quantitative restrictions and measures with equivalent effect and the exceptions thereto in Article 36, only not to be faced with a numbering system that has the exception in Article 30 and the ban in Article 28. Likewise, probably the most familiar EC Treaty articles to American lawyers—the competition provisions in Articles 85 and 86—have become Articles 81 and 82. We have, of course, used the new numbering system in our text, with indications in parentheses of the old numbers. Similarly, in cases where we have kept the old article numbers, we have indicated the new numbers in brackets. While this new edition was in preparation, new amendments to bot the EC Treaty and the TEU were agreed to in the Treaty of Nice, signed in December 2000. (The proposed amendments will already undermine the purity of the new numbering system by adding, for example, new Articles 11a and 181a.) Where significant, we have indicated in the text and notes the changes that will be made if and when the Treaty of Nice is ratified. As of November 2001, only Denmark, France and Luxembourg had deposited their ratifications, although the process of ratification was at an advanced stage in several other Member States. Unfortunately, in June 2001, Irish voters rejected the Treaty, reflecting the now longstanding complaints that there is too great a distance between leadership and the people and, notwithstanding impressive institutional reform in recent years, still something of a “democratic deficit.” The Selected Documents, which accompanies the casebook, contains the EC Treaty (as last amended by the Treaty of Amsterdam in 1999), the TEU (likewise as amended at Amsterdam), followed by (a) a convention table of article numbers for both treaties showing the pre- and post-Amsterdam numbering and (b) the 2000 Treaty of Nice which, as of this writing, remains to be ratified. The Nice Treaty consists primarily of amendments to the EC Treaty and TEU, and users are strongly encouraged when considering any treaty article to turn to the Nice Treaty (Document 4) for an indication of how, if at all, that particular provision would be altered upon the Nice Treaty’s entry into force. (Where highly significant, the projected changes will in any event be brought to the reader’s attention in text and notes throughout the book.) Because the treaties constitute the foundation of the Community legal system, they should in any case be read in tandem with the casebook as and when reference to treaty articles is mad. Editors’ note in the Selected Documents try to make the interplay between these texts as clear as possible. The Selected Documents volume also contains a large sample of important secondary legislation, excerpted lightly and with care. Students will profit from working with these complex legislative texts. The accessibility of these important Community law documents should also be helpful in research.
Administrative Law and Regulatory Policy: Problems, Text, and Cases

Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, and Matthew L. Spitzer

Administrative Law and Regulatory Policy: Problems, Text, and Cases, Fifth Edition, provides a solid foundation to help students master the principles of Administrative Law in an era of change. This renowned casebook retains the strengths that have made it so popular through previous editions: impeccable authorship logical organization that reflects the major components of administrative procedure and reveals the interaction between doctrine and procedure as well as bureaucratic and political factors at work plentiful notes and problems that reinforce the cases and aid in surveying administrative regulation exceptionally insightful historical material on the rise of regulation And The role of the New Deal in changing American government full coverage of the economic aspects of regulatory control, including cost-benefit analysis detailed treatment of the goals and performance of the regulatory state, including regulatory aspirations, successes, and failures, To give students a deep and rich understanding of the subject new information on the regulation of telecommunications detailed new material on important developments regarding the separation of powers, energy policy And The environment, and administrative law issues raised by potential conflicts new case study section on the joint U.S. Supreme Court/D.C. Circuit decision on the nondelegation doctrine in the context of the Clean Air Act unique discussion of the use of cost-benefit analysis in the Bush and Clinton administrations, not covered by any other casebook, And The legal challenges likely to arise in the next decade additional cases (Brown & Williamson, American Trucking) and new developments regarding the Chevron doctrine, The FDA's effort to regulate tobacco, The status of interpretive rules, And The power of the EPA more background information on cases for a fuller exploration of the issues.
Judicial Independence at the Crossroads: An Interdisciplinary Approach

Stephen B. Burbank and Barry Friedman

This new volume aims to break down the disciplinary barriers that have impeded scholarly analysis of, and public policy debates concerning, a subject of immense importance to the US and other developed and developing democracies. Judicial Independence at the Crossroads: An Interdisciplinary Approach is a path-breaking collection of essays by leading scholars from the disciplines of law, political science, history, economics and sociology. As a result, the essays represent a strongly interdisciplinary perspective that enables the reader to identify common myths in scholarly and public discussions of judicial independence, and to engage more effectively with the key debates. The editors also highlight progress made towards a shared understanding and the considerable gaps in analysis and understanding that remain. This book offers both scholars and politicians a guide to more fruitful research and sounder public policy at a time when federal judicial selection is one of the most contentious political issues in Washington. Given the explicitly comparative perspective of some of the chapters, the volume will be important reading not only for scholars and policy makers in the US but also for those interested in the topic in any other country that seeks to establish or reaffirm the importance of the rule of law.
Civil Litigation in New York

Oscar G. Chase and Robert A. Barker

It is gratifying to present the fourth edition of our casebook. This new edition is necessitated by the law’s many changes since the third edition appeared, by the continuing use of Civil Litigation in New York as the primary teaching vehicle for contemporary courses on New York civil practice, and by the importance of the subject matter. Reflected in the fourth edition are legislative and case-law changes to the “commencement of filing” system, the statutes of limitations, and disclosure, among others. . . . Civil litigation in New York is complex and demanding. It calls on such advocacy skills as oral argument, brief writing and cross-examination, but even more does it demand familiarity with the “law” of litigation. The purpose of this book is to help you learn that law in the context in which an advocate must apply it. We hope that you will not only become familiar with the rules of New York practice but that you will develop a sense of how they can be creatively applied. To that end we have included in each chapter litigation problems which are designed to help you put the law into a practical perspective. The problems are based on realistic situations (sometimes on actual cases) and therefore raise the sorts of difficult issues which can arise in the course of any action. Usually, you will find that we have presented the problem prior to the material which bears on it. This will hopefully make the material less abstract and more involving. Many of the problems do not have a single answer which is correct in an absolute sense. As with most legal issues there are various possible solutions, each with its own supporting arguments. Please approach them in that spirit. In keeping with its purposes, the book is organized roughly along the path litigation normally takes, starting with the rules governing the choice of forum. Since there is no route which all lawsuits must follow, and since there are some rules of litigation (e.g., those governing motion practice) which are relevant to several stages of a lawsuit, you should not take the linear organization we have adopted as exemplifying all lawsuits or as an approach you would always follow in practice. Use it, rather, to gain and keep a general sense of litigation as a process with a beginning, middle and clearly defined goal. The variety of paths litigation can take brings us to another point about the study of it. The flexibility of modern civil procedure, including that of New York, allows and therefore requires the lawyer to make frequent tactical choices. Should one make a particular motion? Obtain a provisional remedy? Seek discovery? If so, what kind? How should the pleading be drafted? It is our view that an effective advocate knows what the ethical choices are in every situation and dose his or her best to pick the alternative which will maximize the client’s chances of success. Thus, as you read the cases and problems which follow, we urge you to think about and evaluate the choices that the litigants made. The management of litigation system in pursuit of success is not the only challenge to the student or attorney. Equally fulfilling, if not more so, is participation in the ongoing effort to reform and improve the system. This book goes to press during a period of widespread criticism of civil litigation as a method of resolve disputes. How the system can and should be changed in response to its critics is therefore a particularly timely issue now; there is no doubt that the search for improvement will continue during the professional lifetime of today’s student. Thus, these materials frequently encourage you to step back from the process and ask “How can we make this better?”
Regulation of Lawyers: Problems of Law and Ethics

Stephen Gillers

The ideas in this book and the course for which it is assigned will govern all of your professional life. Here you learn the rules you have to live by and the consequences if you ignore them. Other courses teach lessons that bear on your clients’ problems more directly. This course is for you. Unless you work in the areas of legal malpractice, lawyer discipline, or the like, you and not your clients will be the immediate beneficiary of what you learn here. Your clients will be indirect beneficiaries. The subject of this course can be discussed from at least three perspectives. At the precipice of your career, perhaps most important are rules that constrain your professional behavior. In such areas as competence, fees, marketing, confidentiality, conflicts of interest, negotiation, and the attorney-client relationship, what may you do, how may you behave—with confidence that your conduct will not land you before a disciplinary committee, lead to a civil lawsuit, invite court sanction, forfeit your fee, or damage your reputation? Even to ask this question should be sufficient to forewarn you that the “ethics” in legal ethics is not merely about being a morally good person. It is also about being a professionally safe lawyer. For the fact is that the law business is heavily regulated, like banking, securities, and pharmaceuticals. The regulations are becoming increasingly complex. They have already led to creation of a new phrase—the law governing lawyers—lest anyone is fooled by the word “ethics” into believing that the subject is mostly how to be liked or respected. You make two mistakes at your peril. First, do not believe that the right way to act—toward clients, courts, adversaries, or colleagues—will be intuitively obvious. Sure, sometimes it will be. But no one needs to teach you not to lie or steal in professional life, and certainly not in 1,000 pages. The rules here are often not self-evident; they may even be counterintuitive and can be exquisitely subtle in their application. Second, do not assume that the law office that hires you will provide all the protection you need against missteps. Good law offices do have systems to detect and avoid improper conduct. But they are not perfect, and, anyway, the duty to act properly is generally not delegable. The individual responsibility of each lawyer cannot be entrusted to a boss. In the end, you’re on your own. The second perspective from which to view the law governing lawyers is the relationship between the profession and society. The rules that lawyers impose on themselves and that are imposed on them, taken together, help define the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise will influence the conduct of individual members of the bar. But it may also affect the size of legal fees and whether or how large categories of people use lawyers. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client in order to protect others from harm will control that lawyer’s own behavior, but it may also affect which client populations use lawyers, and what information clients are willing to give them. In short, nearly every rule, whatever its source, has social and political consequences beyond any single representation or practice, although there is often fierce disagreement over what these consequences will be and whether they should be avoided or encouraged. As you are about to go off into law practice, you may be more interested in such questions as “How do I behave?” and “How can I stay out of trouble?” than in asking, “What are the consequences to society and justice if one or another version of a particular rule is applied to America’s more than 800,000 practicing lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Many readers of this book will someday be in positions that require them to address the broader question. It should come as no surprise that practicing lawyers have intense feelings about the issues in the area of lawyer regulation. They see intuitively how decisions about them can later their professional lives. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses from practicing lawyers. Why? In part, because to answer them, we must call upon political and moral values more fundamental than the “ethics” that inform various codes. And, of course, the political and moral values of different people may differ fundamentally. In addressing these questions, we should try to be honest about the interests we mean to protect. Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client populations we serve? Our firm’s? Our own? Responding honestly may not entirely endear the bar to the public, but it may help mitigate what often appears to be an ingrained American suspicion, if not hostility, toward lawyers. Tracing that attitude in history and the popular culture is Leonard Gross, The Public Hates Lawyers: Why Should We Care?, 29 Seton Hall L. Rev. 1405 (1999). Law school and law practice, it is sometimes said, encourage more rather than less self-interestedness in answering the questions raised here. In transition as you are, your answers to many of them will likely vary from what they would have been before you entered law school and will likely be still different five years after you graduate. I wrote that rules governing the practice of law can be discussed from three perspectives. I have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer injustice will take its toll on those who must obey it. As men and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. How can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made about the rule that requires lawyers diligently to pursue the lawful goals of their clients, even if these goals (or the legal strategies used to achieve them) offend the lawyer’s values. Or consider the oft-cited schism between the qualities of personality that law office culture tends to reward and the ones encouraged in personal and family life. Do you have t learn behavior in order to survive in professional environments that will make you downright unpleasant in social and familial ones—unless you also learn how to “leave it at the office”? One thinks of the common retort of a lawyer’s law relatives: “Oh, stop talking like a lawyer!” Many topics in this book lend themselves to discussion of the effect of role on self. I hope you are able to address this issue in class, but certainly they are worthy of self-reflection throughout your career, starting now. This is the sixth edition of this book. I started work on the first edition in 1982. Between editions I spend an hour or two each weeks planning for the next one. You get to thinking a lot about what a casebook is and can be when you live with one for so long. The book’s primary function is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick some good cases and other materials, edit them, order them logically, add interstitial notes and questions, and put the product between covers. Voila! A casebook. Or course, one must begin this way, but if nothing more were possible (even if not required), I doubt that I would have continued at it this long. I’d grow bored. Luckily, more is possible while still serving the book’s objective—to teach the subject. For starters, we can strive for humor, variety, clarity, and engaging writing. The enterprise will not likely support the extended charm of a Hazlitt essay or the quirkiness of a Vonnegut novel—assuming I had the talent to achieve either, in which case I’d probably be in a different line of work—but a casebook is a book, after all, and should have, well, personality, an authorial presence in so far as possible. So you may find the tone or voice in my contributions to this volume (and even some of the editorial selections) different from what you’re accustomed to encountering in the genre. That’s what make the book mine. The legal profession is a culture of storytellers and stories. Harrison Tweed, a president of the Association of the Bar of the City of New York, once said: “I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. They are better to work with or play with or fight with or drink with than most other varieties of mankind.” These words are in fact inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Mr. Tweed was a little over the top, if not downright sanctimonious, in making so grandiose a claim. At that time in my life, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said “all professions are conspiracies against the laity.” To some extent, I still find Tweed excessive, though not quite as passionately as when I was starting out, and Shaw apt, even if hyperbolic. And yet. And yet Tweed has a point. The profession and its members are fascinating to study and its stories are fascinating to hear. Like any culture, understanding it requires density. We must know a thousand small things about life within the society of lawyers, not merely two or three big things, if we are going to understand it truly. While this book is not a sociological study or lawyers or of legal institutions, I have tried to incorporate current events in the materials and to offer you note cases—little stories, really—exemplifying multiple variations on particular themes. I believe that these will make the culture of law practice more real for you and thereby better help you understand the rules that define it. Finally, I invite your views on the book. What was dull? What worked well? How can the book be improved? Have you encountered a story somewhere (true or fiction) that you think nicely highlights an issue? You can reach me in several ways. By snailmail at NYU School of Law, New York, NY 10012. By fax at (212) 995-4658. Send e-mail to stephen.gillers@nyu.edu. All comments will be acknowledged.
Regulation of Lawyers: Statutes and Regulations

Stephen Gillers and Roy D. Simon

Prior edition of Regulation of Lawyers: Statutes and Regulations.
Sales Law: Domestic and International

Clayton P. Gillette and Steven D. Walt

This book describes and analyzes the law of sales under Article 2 of the Uniform Commercial Code ("UCC") and under the United Nations Convention on Contracts for the International Sale of Goods (the "CISG" or "Convention") ... Rather than restating self-explanatory provisions or cases applying them, its treatment is analytic. Students are given a framework that they can use to assess important aspects of the subject and apply to provisions not discussed explicitly.
Federal Income Taxation: Principles and Policies

Michael J. Graetz and Deborah H. Schenk

This whole book is but a draught—nay, but the draught of a draught. Oh, Time, Strength, Cash and Patience!—Herman Melville, Moby Dick, Ch.32. Even with more time, strength, cash, and patience, the Congress, the courts, and the Internal Revenue Service all collaborate to ensure that any book designed for teaching a basic course in Federal Income Taxation will never be more than a draft of a draft. Today, no area of law seems more susceptible to change than federal taxation. Consider the following facts reported by the Staff of the Joint Committee on Taxation: In the period from the enactment of the Tax Reform Act of 1986 until the end of the year 2000, Congress enacted nearly 100 different laws amending the Internal Revenue Code, not counting legislation affecting Social Security, railroad retirement, unemployment compensation, tariffs or customs duties, or the public debt limit. The Code currently contains about 700 provisions affecting individuals and more than 1,500 provisions affecting businesses. As of May 2000, the Code contained 1.4 million words making it more than six times longer than Crime and Punishment and considerably harder to parse. The regulations contained another 8.6 million words, spanning almost 20,000 pages. During calendar year 2000, the Treasury and IRS published 60 Treasury Decisions (containing final and temporary regulations), 45 sets of proposed regulations, 58 Revenue Rulings, 49 Revenue Procedures, 64 Notices, 100 Announcements, 2,400 Private Letter Rulings and Technical Advice Memoranda, 10 Actions on Decisions, 240 Field Service Advice Documents, and a partridge in a pear tree. For 1999 an individual filing the income tax Form 1040 could file a return with 79 lines, with 11 schedules totaling 443 lines. The schedules refer you to 19 additional worksheets. The instructions to the Form 1040 filled 144 pages of rather small type. In addition to Form 1040, 18 additional forms are commonly used by individuals. Meanwhile, the courts have decided tens of thousands of tax cases. In 1999 alone, nearly a thousand tax bills were introduced in the Congress. And hardly a day passes without a new proposal for replacing the income tax either with some form of consumption tax or a broader-based, flatter-rate income tax. Obviously it is impossible—and we think unwise—for a course introducing the income tax to try to instruct students about each of these developments. This book is about the fundamental concepts and forces shaping the income tax, not current events. That is why this edition reflects a remarkable continuity with its ancestor edition, Griswold’s Cases on Federal Taxation. That book, initially published more than sixty-five years ago in 1940, was the first law school coursebook devoted exclusively to federal taxation. It appeared at a time when most of the operative statutory provisions were phrased in general terms and many of the basic concepts of federal taxation had not yet matured. Most law schools taught federal taxation only as part of a course that also covered state and local taxation. Nevertheless, this text retains the same overarching organization that Erwin Griswold first brought to the subject. The subsequent adoption of this structure by most income tax coursebooks is a great tribute to Griswold’s insights into how the subject of federal taxation should be taught. The mass of detail that has been added to the statute and the regulations and the burgeoning case law in the intervening six decades has required a substantial rethinking of the purposes of an introductory course in federal taxation and, hence, of this coursebook. For one thing, these details have become so voluminous and the changes so frequent that the student must necessarily strive to understand basic concepts rather than to memorize particular rules. The practice of tax law has become more specialized, and most law schools offer a number of advanced course in taxation. The student in an introductory course therefore must attain some familiarity not only with the statute, the regulations, and the cases but also with the trends in the tax law, the prospects for change, and the fundamental policy issues that inform such changes. Successful tax lawyering inevitably will involve responding to new and unforeseeable rules and therefore will demand a basic conceptual understanding of income tax principles and policies. Likewise, the nonspecialist needs to be introduced to these fundamental concepts of income taxation, if only to be able intelligently to recognize and monitor his or her clients’ tax problems. The composition of this book has also been influenced by the increasing use of the tax law as an instrument of social and economic policy. The income tax is not merely a revenue-raising device to finance the goods and services provided by the government. The decisions as to what to tax, and when, increasingly affect the directions, growth, and overall condition of our economy and the allocation and distribution of resources within our society. For these reasons, this volume devotes substantial attention to the general principles and policies of federal taxation. Thus, cases have been supplemented with excerpts from congressional reports, administrative pronouncements, and commentaries and analyses of tax issues. In addition, there are explanatory notes introducing fundamental concepts of tax law and shorter notes following the principal cases. This edition nevertheless continues to reflect the central pedagogical perspective developed in Erwin Griswold’s original volume, the preface of which stated: “Here is an opportunity, almost unique * * *, to study a complete and self-contained system. Here is an opportunity to come into contact with perhaps our most experienced administrative agency. Here is an opportunity to deal with a statute, not as some excrescence on the common law, but as the law, to trace its growth, to learn how it is given meaning and how that meaning changes. Here is an opportunity to deal with authoritative judicial decisions—or at least, and perhaps more important, to consider how far they are authoritative * * * Here as elsewhere it is understanding and knowledge of the process that is sought.” These opportunities are not less present in this volume than they were in its ancient predecessor. This edition retains the basic chapter organization of its predecessors. The first chapter contains the basic policy and procedural aspects of income taxation. This chapter includes a brief history of taxation in the United States, an introduction to income tax terminology, and a discussion of the roles of Congress, the executive, and the courts. Subsequent chapters explore the topics “What Is Income?,” “Deductions and Credits,” “Whose Income is It?,” “Capital Gains and Losses,” and “When is It Income?”. Of course, tax problems rarely can be placed into such discrete categories. Hence, there is some overlap of subjects within the chapters. Chapter 7 provides a brief description of the individual minimum tax. Chapter 8 contains an introduction to corporate tax shelters as well as materials on the ethical responsibilities of tax lawyers, thereby providing an appropriate context for their analysis and discussion. The Appendix contains tables of present values. As every teacher of taxation knows, it has become increasingly difficult to teach an introduction to federal taxation in a single semester, even in a 60-hour course. Compromises between breadth of coverage and treating at least some materials in depth are ever more necessary. Most instructors have learned to maintain limited expectations as to what can reasonably be accomplished in the first course and to assume that students with genuine interest in taxation will take additional courses in the subject. This volume continues the layered approach of the prior editions. By selecting from the materials available here, teachers can decide which aspects of income tax law and policy to emphasize and which to skim or even omit in an introductory course. This volume contains enough materials to teach not only a four-hour basic course in federal income taxation, but also an additional three-hour course designed to pursue certain issues in greater detail than is possible in the basic course. This means that the instructor must exercise considerable selectivity in teaching any single course form this book. For example, one of us tends to emphasize Chapters 2 and 3, the first two sections of Chapter 4, the first three sections of Chapter 5, and a brief selection from Chapter 6. Another professor, who taught these materials in a two-semester course, skipped certain aspects of Chapters 2 and 3 and used only the introductory sections of Chapters 4 and 5 in the basic course, with the balance of materials used in the second course. Instructors who wish to cover more ground might consider relying on students to read some of the more straightforward materials without classroom discussion. Designing courses inherently involves personal priorities and choices. The precise materials assigned will depend upon the teacher’s individual choices of where to delve deeply into substantive law and policy issues as well as how to trade off in-depth discussions and general coverage. We have attempted here to provide sufficiently comprehensive, interesting, and flexible materials to allow teachers to make a wide variety of successful selections. Federal income taxation is, of course, primarily a statutory course. In addition to this text, the student will need a current edition of the Internal Revenue Code and as well as certain sections of the Income Tax Regulations. A number of publishers now produce one volume editions of selected statutory and regulatory provisions that may be used along with this text.
The Law of Democracy: Legal Structure of the Political Process

Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes

The Law of Democracy offers a systematic exploration of the legal construction of American democracy. The book brings together a cluster of issues in law regulating the design of democratic institutions, and the book employs a variety of methods - historical, comparative, theoretical, doctrinal - to explore foundational questions in the theory and practice of democracy. Covered issues include the historical development of the individual right to vote; current struggles over racial gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies.
Mountain or Molehill?: A Critical Appraisal of the Commission White Paper on Governance

Christian Joerges, Yves Mény, and Joseph H. H. Weiler

Reform is persistently on the agenda of the European Union (EU). As this volume goes to press, we can observe three simultaneous processes of change under way. Forms of evolutionary change continue to alter the practice of both policy and decision-making in the EU. Deliberate attempts at experimental change are being introduced into the way the EU works. And the Convention has just opened to canvass options for engineered changes to the treaties on which the EU is based. Each of these processes of change affects the others, making the EU a constant puzzle to understand and requiring both commentators and practitioners to re-examine their assumptions. This collection of essays offers some provocative reflections on the ways in which 'governance' has apparently emerged as an organising concept for analysing this continuous process of change in the EU. The collection was itself prompted by the decision of the European Commission to open a debate on European Governance through the White Paper published in July 2001. In preparing this White Paper, the Commission invited one and all to join it in analysing both the ingredients of change and the possible remedies to improve the performance of the EU institutions. The agenda is a huge one, as the White Paper itself demonstrates, with its many and varied suggestions for reform. The agenda is also a controversial one, since there is no single predominant recipe. Moreover, there is no single diagnosis of what the ingredients of change are or what is the most appropriate way to mix them together. It is all the more important, therefore, that we, in the academic community, should respond to the challenges put to us by the changing world of practice. Consequently, in assembling this collection we gave no guidelines to our contributors. Thus, the resulting eclectic range of observations and provocations is offered herewith to further intellectual debate. The participants in this volume speak for themselves but also as members of a scholarly community with a very deep concern for our shared subject, namely, the quest for a process of European integration that works, that can generate worthwhile collective action, and that can grow stronger roots in the European societies in which it is grounded. The launch pad for this collection was the European University Institute in Florence. Its realisation is the fruit of a continuing collaboration with the Jean Monnet Program at Harvard Law School and NYU School of Law.
The Myth of Ownership: Taxes and Justice

Liam B. Murphy and Thomas Nagel

In a capitalist economy, taxes are the most significant instrument by which the political system can put into practice a conception of economic justice. But conventional ideas about what constitutes tax fairness--found in the vigorous debates about tax policy going on in political and public policy circles, in economics and law--are misguided. In particular, the emphasis on distributing the tax burden relative to pretax income is a fundamental mistake. Taxation does not take from people what they already own. Property rights are the product of a set of laws and conventions, of which the tax system forms a central part, so the fairness of taxes can’t be evaluated by their impact on preexisting entitlements. Pretax income has no independent moral significance. Standards of justice should be applied not to the distribution of tax burdens but to the operation and results of the entire framework of economic institutions. The result is an entirely different understanding of a host of controversial issues, such as the estate tax, the tax treatment of marriage, “flat” versus progressive taxes, consumption versus income taxes, tax cuts for the wealthy, and negative income taxes for the poor.